Australian Citizenship Without Living Here?

04 Jul Australian Citizenship Without Living Here?

Can you become an Australian citizen without living in Australia? The question is not as “silly” as it sounds!

Section 21(2) of the Australian Citizenship Act 2007 specifies that persons who are seeking to become Australian citizens “by conferral” must satisfy the “general residence requirement” of section 22. In turn, section 22 requires that a person who is an applicant for citizenship must have been “present” in Australia for the 4 year period immediately before the application is made; must not have been an unlawful non-citizen at any time during the 4 year period; and must have been present in Australia for the 12 month period immediately before the day the application was made.

However, section 22(9) of the Act enables the Minister to exercise discretion, and to treat a period as one where the applicant was actually outside of Australia as one where, for the purposes of the residency requirement, the applicant will be treated as having been present in Australia, provided the following prerequisites are satisfied:

The applicant was a spouse or de facto partner of an Australian citizen during the period;

The applicant held the status of a permanent resident during that period;

The Minister is satisfied that the applicant had a “close and continuing association” with Australia during the period.

In other words, section 22(9) is a “deeming” provision which enables the Minister to treat a period when an applicant for citizenship is one where the person is present in Australia, even though as a matter of practical reality, the person is outside Australia.

Magic, right! The Citizenship Act effectively gives the Minister mystical powers to transform history! Better than a black cape or a magic wand?

How easy is it to invoke this deeming power?

That was a question that was tested in a case that was decided by the AAT towards the end of last week,

The factual background of this case was that the applicant was a 66 year old citizen of Iraq who is a qualified cardiologist. The applicant and his wife were married in Iraq in 1976, and she became an Australian citizen in 2014. They had 4 sons, 2 of whom live in Australia and are also Australian citizens.

The applicant only had a short history of actual residence in Australia. He originally arrived in Australia in April 2010 from the UAE, where he had been living since 2006. He was granted a protection visa in September of that year. Shortly after he received the protection visa, in October 2010, he moved back to the UAE and commenced employment in a hospital in Abu Dhabi.

The Department’s “movement records” indicated that the applicant was physically present in Australia for only 175 days in the 4 year period before he made his citizenship application (in July 2015) and that he had been present in Australia for only 10 days of the 12 month period immediately before lodging his application.

So, was he out of luck, or was his citizenship application “rescued” by the deeming provisions of section 22(9)?

In the first instance a Departmental officer determined that the applicant did not meet the residency requirement and that he could not gain the benefit of the deeming provision.

And before the AAT?

The AAT examined whether the applicant had a “close and continuing association” with Australia through the lens of the new Australian Citizenship Policy, which came into force on 1 June 2016 and replaced the previous Australian Citizenship Instructions (quiz: how many of you knew that? Prizes will be awarded to everyone who can honestly say “yes”!!)

Perhaps it will come as a relief to know that the new Policy replicates the same list of factors that were used under the Citizenship Instructions to assess whether an applicant has a “close and continuing relationship” with Australia. These factors are to be read “holistically”, according to the AAT’s decision in the case of Taher and Minister for Immigration and Border Protection (2013) AAT 917 and include the following:

Evidence that the person has migrated to Australia and established a home in Australia prior to the period overseas;

Australian citizen children;

Long term relationship with Australian citizen spouse or de facto spouse;

Extended family in Australia;

Regular return visits to Australia;

Regular periods of residence in Australia;

Intention to reside in Australia;

Whether applicant on leave from employment in Australia while accompanying spouse or partner overseas;

Ownership of property in Australia;

Evidence of payment of Australian income taxes over the 4 year period before the application; and

Evidence of active participation in Australian community based activities or organisations

Which of these factors did the applicant have in his favour? He had the 2 Australian citizen children residing in Australia; a married relationship with his wife, an Australian citizen, that had existed for nearly 40 years; extended family in Australia, a daughter-in-law and 2 grandchildren; he had made regular trips to Australia during his holidays; had provided funds for the purchase of a property in the Sydney area; and had an intention to move permanently to Australia when he retired from his work in the UAE.

Was this enough? Not in the view of the AAT!!

The Tribunal found that the factors in the applicant’s support, the presence of his wife and children in Australia, an “ill-defined” intention to retire in Australia, and financial support for his family, while “important matters”, were not, taken collectively, enough to warrant the exercise of discretion in his favor.

Exactly why was this not enough? The AAT did not explain!

What do you think? Was this decision correct and preferable?

Did the AAT commit jurisdictional error by failing to provide a reasoned explanation in its decision as to why the factors in the applicant’s favour were not “sufficient”? Did the AAT engage in an active intellectual exercise, and thus fulfill its obligation to conduct a review? And was there a logical and intelligible explanation for the AAT’s negative conclusion?